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Sabra v. Shafer

July 17, 2008



Talaat E. Sabra, the pro se Plaintiff in this action, is a Muslim Arab of Egyptian nationality. He alleges that New York City Health and Hospitals Corporation and Gouverneur Hospital (collectively, "Defendant" or "HHC") violated his federal and state statutory rights to be free from prohibited discrimination by terminating his employment and failing to remedy a hostile work environment caused by harassment. Joel H. Shafer, the Equal Employment Officer of Gouverneur Hospital, and Brian D. Ellis, the Assistant Director for Labor Relations of three facilities within the South Manhattan Network of the New York City Health and Hospital Corporation, are also named as defendants.

Plaintiff brings statutory claims of race, creed, and national origin discrimination and retaliation invoking, inter alia, Title VII of the Civil Rights Acts of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law, among other state law discrimination causes of action.*fn1 The Court has jurisdiction of Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331 and 1334 and supplemental jurisdiction of Plaintiff's state law claims.

Defendants move for summary judgment dismissing Plaintiff's Amended Complaint in its entirety. Defendants' motion papers were accompanied by a Statement pursuant to S.D.N.Y. Local Civil Rule 56.1, as well as a number of evidentiary submissions.Plaintiff's opposition papers lack a responsive Rule 56.1 Statement and consist of argument and unsworn factual assertions. Because, however, there is no evidence in the record that Defendants served a Local Civil Rule 56.2 Statement*fn2 on Plaintiff with their motion papers, the Court takes Plaintiff's factual allegations (although not the conclusions argued from them) as true in determining whether there are genuine issues of material fact, notwithstanding his failure to put anything in an affidavit or a declaration subject to penalties of perjury. The Court has considered thoroughly all of the parties' submissions and arguments in connection with this motion. For the following reasons, Defendants' motion is granted as to all of Plaintiff's claims, with the exception of his claim that his employment was terminated in retaliation for making complaints of discrimination.


The following material facts are undisputed unless otherwise stated. On or about August 14, 2002, Bruce Higgins, Associate Director of Specialty Services at Gouverneur Hospital, and Minerva Cotrich, Coordinating Manager of the Department of Dentistry at Gouverneur Hospital, interviewed Plaintiff Talaat E. Sabra ("Plaintiff") for employment as a Dental Assistant at Gouverneur Hospital ("Gouverneur"). (Def.'s Rule 56.1 Stmt. ¶ 12.) During the interview, Higgins informed the Plaintiff that HHC would need to conduct a background check on Plaintiff prior to employment, and that HHC performs background checks on all prospective employees, not just the Plaintiff. (Def.'s Rule 56.1 Stmt. ¶ 39.) Upon the recommendation of Mr. Higgins and Ms. Cotrich, on September 24, 2002, Plaintiff was provisionally appointed to the title of Dental Assistant at Gouverneur. (Higgins Decl. ¶ 3; Def.'s Rule 56.1 Stmt. ¶ 13.) On September 23, 2003, Plaintiff received a satisfactory rating on his performance evaluation, which was prepared by Frances Ramos, Assistant Coordinating Manager of the Department of Dentistry at Gouverneur Hospital, and reviewed by Ms. Cotrich. Plaintiff's employment was terminated on November 26, 2003, by Brian D. Ellis, Assistant Director of Labor Relations for HHC.

Plaintiff alleges that, sometime between March and May 2003 (or during the first two months of his employment), he was involved in a work-related argument with Ms. Cotrich, who was by then Plaintiff's former supervisor. (Def.'s Rule 56.1 Stmt. ¶ 16; Rosenthal Aff., Ex. D ¶¶ 17-18.) During the course of this argument, Plaintiff alleges that Cotrich said "[y]ou're arab" or "[b]ecause you are arab" to Plaintiff and then smiled at Ms. Ramos. (Def.'s Rule 56.1 Stmt. ¶ 16.; Rosenthal Aff., Ex. D ¶¶ 16-17.) Plaintiff did not report or file a complaint about this incident. (Def.'s Rule 56.1 Stmt. ¶ 17.)

Plaintiff also alleges that Dr. John Chaung, a dentist at Gouverneur, made several discriminatory comments toward him. These comments included twice asking Plaintiff if he supported Al-Qaeda, and once calling Plaintiff "Sadam." (Rosenthal Aff., Ex. D ¶ 53; Def.'s Rule 56.1 Stmt. ¶ 46, 49.) Plaintiff also alleges that, on one occasion when he was assisting Dr. Chaung, Dr. Chaung discriminated against Plaintiff when, after Plaintiff told Dr. Chaung that he extracted too many teeth and should instead perform root canals, Dr. Chaung said "[b]ut it is not like the butcher of Baghdad." (Def.'s Rule 56.1 Stmt. ¶ 47.)

Moreover, Plaintiff alleges that Dr. Arthur Kalim, a dentist at Gouverneur, discriminated against him on two occasions. The first occasion occurred when the Plaintiff received a phone call and Dr. Kalim said to Plaintiff, "Sabra, immigration is looking for you," in front of co-workers who then laughed. (Rosenthal Aff., Ex. D ¶ 48; Def.'s Rule 56.1 Stmt. ¶ 41.) On the second occasion, several employees were watching a television report on an attempt to shoot the New York City Mayor and Dr. Kalim said "Sabra here?" (Rosenthal Aff., Ex. D ¶ 50; Def.'s Rule 56.1 Stmt. ¶ 42.)

HHC maintains an internal EEO complaint procedure for any employee complaining of discrimination based on several grounds including race, religion, national origin, color and creed. (Def.'s Rule 56.1 Stmt. ¶ 51.) Information regarding HHC's EEO policies and procedures is regularly issued to employees. (Shafer Aff. ¶ 2.) EEO complaints are investigated, typically through review of documents and interviewing witnesses, by the EEO office at the facility or by the HHC central EEO office. (Id. at ¶ 3.) After investigation, a determination is made regarding whether the allegations were substantiated or unsubstantiated. (Id.) If a complaint is substantiated, a variety of actions may be taken, including re-training of employees, counseling meetings, discipline action, or termination. (Id.) On July 10, 2003, Plaintiff filed a complaint with the HHC Equal Employment Opportunity ("EEO") Office, but did not report the incidents involving Dr. Kalim in the complaint. (Rosenthal Aff., Ex. D ¶ 50; Def.'s Rule 56.1 Stmt. ¶ 40.)

Furthermore, Plaintiff argues that another dental assistant, Evelyn Soto, discriminated against him by asking him questions about the assassination of Egypt's President, including whether the Plaintiff supported those who carried out the assassination. (Rosenthal Aff., Ex. D ¶¶ 50-51; Def.'s Rule 56.1 Stmt. ¶ 43.) The Plaintiff also submits that Ms. Soto discriminated against him by listening to Plaintiff while he was making phone calls. (Rosenthal Aff., Ex. D ¶¶ 50-51; Def.'s Rule 56.1 Stmt. ¶ 44.) Plaintiff testified in his deposition that, after he filed the July 10, 2003, complaint, Soto did not say or do anything that he believed was discriminatory. (Rosenthal Aff., Ex. D ¶ 52; Def.'s Rule 56.1 Stmt. ¶ 45.)

Furthermore, Plaintiff argues that Ms. Ramos discriminated against him by scrutinizing his performance more than other employees, and that Mr. Higgins discriminated against him by looking at him worriedly when he saw Plaintiff holding a bag and making a phone call. (Def.'s Rule 56.1 Stmt. ¶¶ 31, 35.)

Plaintiff's July 10, 2003, EEO Complaint pertained solely to a June 27, 2003, argument between Plaintiff and another dental assistant, Marquita Davis. (Rosenthal Aff., Ex. D ¶ 47; Def.'s Rule 56.1 Stmt. ¶ 53.) The complaint alleged that, during the course of the argument, Ms. Davis discriminated against Plaintiff by asking if Mr. Sabra's conduct during the argument was indicative of how women are treated in Plaintiff's country. (See Rosenthal Aff., Ex. B; Def.'s Rule 56.1 Stmt. ¶ 53.) Plaintiff's EEO complaint also alleged that another dental assistant, Camelia Morales, discriminated against Plaintiff by supporting Ms. Davis during the argument with Ms. Morales and by "seizing the opportunities of some political events to pick" on Plaintiff. (Rosenthal Aff., Ex. B.)

Within two weeks of receiving Plaintiff's complaint, Mr. Shafer began an investigation into Plaintiff's charges by interviewing Mr. Sabra, Ms. Cotrich, Ms. Davis, Ms. Morales, and Ms. Ramos. (Rosenthal Aff., Ex. B; Def.'s Rule 56.1 Stmt. ¶ 58.) Plaintiff testified that, after Mr. Shafer spoke with Ms. Davis and Ms. Morales, neither ever referred to his race or national origin again. (Rosenthal Aff., Ex. B at 43; Def.'s Rule 56.1 Stmt. ¶ 66.) On October 6, 2003, Plaintiff was interviewed by an investigator at the Commission on Human Rights regarding alleged ongoing discrimination against him at Gouverneur. (Rosenthal Aff., Ex. C; Pl.'s Mem. Of Law in Opp. to Def.s' Mot. for Summ. J., Ex. 25.) Mr. Shafer received a letter dated November 5, 2003, from Jonathan Jones, Human Rights Investigator for the Commission on Human Rights, City of New York, regarding this interview and requesting that Mr. Shafer investigate Plaintiff's allegations and take appropriate action. (Pl.'s Mem. Of Law in Opp. to Def.s' Mot. for Summ. J., Ex. 25.) On November 25, 2003, a letter was sent to Plaintiff documenting that Shafer's investigation into Plaintiff's complaint was completed and that Plaintiff's complaint of discrimination was unsubstantiated. (Rosenthal Aff., Ex. J; Def.'s Rule 56.1 Stmt. ¶ 70.)

In her interview with Mr. Shafer regarding Plaintiff's EEO complaint, Ms. Ramos told Shafer that she found Plaintiff to be rude to staff and intimidating, and that, during Plaintiff's argument with Ms. Davis, Plaintiff had been pointing his finger in Ms. Davis' face and not letting her talk. (Def.'s Rule 56.1 Stmt. ¶¶ 86-87.) Additionally, Ms. Cotrich, in her interview with Mr. Shafer regarding the Plaintiff's argument with Ms. Davis, told Mr. Shafer that Plaintiff would perform his assigned duties, but did not get along with female staff including both doctors and doctors' assistants. (Def.'s Rule 56.1 Stmt. ¶ 88.) Similarly, Ms. ...

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